RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered
into as of the 1st day of January, 2000, by and between XXXXXX CAPITAL, A
DIVISION OF XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation ("Xxxxxx
Capital"), and OCWEN FEDERAL BANK FSB, a federal savings bank (the
"Servicer"), recites and provides as follows:
RECITALS
WHEREAS, Xxxxxx Capital has conveyed certain Mortgage Loans
identified on Schedule I hereto (the "Serviced Mortgage Loans") to Structured
Asset Securities Corporation ("SASCO"), which in turn has conveyed the
Serviced Mortgage Loans to First Union National Bank, a national banking
association, as trustee (the "Trustee") under a trust agreement dated as of
January 1, 2000 (the "Trust Agreement"), among the Trustee, Norwest Bank
Minnesota, National Association, as master servicer ("Norwest," and, together
with any successor Master Servicer appointed pursuant to the provisions of the
Trust Agreement, the "Master Servicer") and SASCO.
WHEREAS, multiple classes of certificates (the "Certificates"),
including the Class X Certificate, will be issued on the Closing Date pursuant
to the Trust Agreement, and Xxxxxx Brothers Inc. or a nominee thereof
(together with any successor in interest thereto and any permitted assignee or
transferee thereof, the "Directing Holder") is expected to be the initial
registered holder of the Class X Certificate.
WHEREAS, Xxxxxx Capital desires that the Servicer service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Directing Holder and the Master Servicer to terminate the rights
and obligations of the Servicer hereunder as set forth herein and to the other
conditions set forth herein.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer pursuant to various servicing agreements (the "Original Servicing
Agreements") between Xxxxxx Capital and the Servicer and the parties wish to
consolidate the servicing of the Serviced Mortgage Loans under the Flow
Servicing Agreement (as defined below) as reconstituted by this Agreement.
WHEREAS, Xxxxxx Capital and the Servicer agree that the provisions of
the Flow Servicing Agreement (as defined below) shall apply to the Mortgage
Loans only to the extent provided herein and that this Agreement shall govern
the Serviced Mortgage Loans for so long as such Serviced Mortgage Loans remain
subject to the provisions of the Trust Agreement.
WHEREAS, Norwest and any successor Master Servicer shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans on behalf of the Trustee, and shall have the right, under
certain circumstances, to terminate the rights and obligations of the Servicer
under this Agreement.
WHEREAS, Xxxxxx Capital and the Servicer intend that each of the
Master Servicer and the Directing Holder is an intended third party
beneficiary of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Xxxxxx Capital and the Servicer
hereby agree as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Residential
Flow Servicing Agreement, dated as of August 1, 1999, between Xxxxxx Capital
and the Servicer for the servicing of performing and non-performing
residential mortgage loans and REO Properties (the "Flow Servicing Agreement")
incorporated by reference herein, shall have the meanings ascribed to such
terms in the Trust Agreement.
2. Servicing. The Servicer agrees, with respect to the Serviced
Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
Flow Servicing Agreement, except as otherwise provided herein and on Exhibit A
hereto, and that the provisions of the Flow Servicing Agreement, as so
modified, are and shall be a part of this Agreement to the same extent as if
set forth herein in full.
3. Master Servicing; Termination of Servicer. The Servicer, including
any successor servicer hereunder, shall be subject to the supervision of the
Master Servicer, which Master Servicer shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Trustee and the trust fund (the "Trust Fund") created pursuant to the Trust
Agreement, shall have the same rights as the "Owner" (as defined in the Flow
Servicing Agreement) to enforce the obligations of the Servicer under the Flow
Servicing Agreement and the term "Owner" as used in the Flow Servicing
Agreement shall refer to the Master Servicer or the Trustee as the context
requires. The Master Servicer shall be entitled to terminate the rights and
obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, which failure
results in a Servicer Event of Default, as provided in Article X of the Flow
Servicing Agreement.
4. No Representations. Neither the Servicer nor the Master Servicer
shall be obligated or required to make any representations and warranties
regarding the Serviced Mortgage Loans in connection with the transactions
contemplated by the Trust Agreement and issuance of the Certificates issued
pursuant thereto.
5. Notices. All notices and communications between or among the
parties hereto or required to be provided to the Trustee shall be in writing
and shall be deemed received or given when mailed first-class mail, postage
prepaid, addressed to each other party at its address specified below. Each
party may designate to the other parties in writing, from time to time, other
addresses to which notices and communications hereunder shall be sent.
6. Governing Law. THIS SERVICING AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
NOTWITHSTANDING NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
8. Reconstitution. Xxxxxx Capital and the Servicer agree that this
Agreement is a "Reconstitution Agreement", and that the date hereof is the
"Reconstitution Date", each as defined in the Flow Servicing Agreement.
Accordingly, the parties hereto agree that the Original Servicing Agreements
shall have no force and effect with respect to the Serviced Mortgage Loans on
or after the Reconstitution Date other than obligations and rights accruing
prior to such date and except to the extent provided in this Agreement.
9. Notices and Remittances to the Master Servicer and Trustee. All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Norwest Bank Minnesota, National Association
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Master Servicing Department, ARC 2000-BC1
All remittances required to be made to the Master Servicer under this
Agreement shall be made to the following wire account:
Norwest Bank Minnesota, National Association
Minneapolis, Minnesota
ABA#: 000-000-000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
For further credit to: # 13633800, ARC 2000-BC1
All notices required to be delivered to the Trustee hereunder shall
be delivered to the Trustee at the following address:
First Union National Bank
000 X. Xxxxx Xxxxxx - N.C. 1179
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Structured Finance Trust Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10. Errors and Omissions Insurance. The Servicer shall keep in force
during the term of this Agreement a fidelity bond and a policy or policies of
insurance covering errors and omissions in the performance of the Servicer's
obligations under this Agreement. Such fidelity bond and policy or policies
shall be maintained with recognized insurers and shall be in such form and
amount as would permit the Servicer to be qualified as a FNMA or FHLMC
seller-servicer. The Servicer shall be deemed to have complied with this
provision if an affiliate of the Servicer has such errors and omissions and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Servicer. The Servicer
shall furnish to the Master Servicer a certificate of insurance evidencing
such bond and insurance policy upon request by the Master Servicer.
Executed as of the day and year first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
OCWEN FEDERAL BANK FSB
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
EXHIBIT A
Modifications to the Flow Servicing Agreement
1. The definition of "Collection Account" in Article I is hereby amended by
deleting the words "in trust for Xxxxxx Capital, a Division of Xxxxxx
Brothers Holdings Inc. and its successors and assigns" and substituting
the following words: "in trust for Norwest Bank Minnesota, National
Association, as master servicer for the ARC 2000-BC1 Trust."
2. The definition of "Collection Period" in Article I is hereby amended in
its entirety to read as follows:
"Collection Period" means with respect to each Distribution Date,
the period commencing on the second day of the month immediately
preceding the month of the Distribution Date and ending on the first
day of the month of such Distribution Date.
3. A new definition of "Custodial Agreements" is added to Article I
immediately following the definition of "Current Servicer" to read as
follows:
"Custodial Agreements": The custodial agreements relating to the
custody of the Serviced Mortgage Loans among (i) Bankers Trust of
California, N.A., as Custodian, the Trustee and Structured Asset
Securities Corporation (the "Depositor"), (ii) Chase Bank of Texas,
N.A., as custodian, the Trustee and the Depositor and (iii) U.S.
Bank Trust National Association, as custodian, the Trustee and the
Depositor.
4. The definition of "Custodian" in Article I is hereby amended in its
entirety to read as follows:
"Custodian" means either Bankers Trust of California, N.A., Chase
Bank of Texas, National Association or U.S. Bank Trust National
Association, as the context requires.
5. The definition of "Distribution Date" in Article I is hereby amended in
its entirety to read as follows:
"Distribution Date" means the 18th day (or if such 18th day is not a
Business Day, the first Business Day immediately following) of any
month.
6. The definition of "Escrow Accounts" in Article I is hereby amended by
deleting the words "for Xxxxxx Capital, a Division of Xxxxxx Brothers
Holdings Inc. and its successors and assigns" and replacing them with the
following words: "for Norwest Bank Minnesota, National Association, as
Master Servicer for the ARC 2000-BC1 Trust".
7. The definition of "Eligible Account" in Article I is hereby amended in
its entirety to read as follows:
"Eligible Account:" An account maintained by either (i) a depository
institution the accounts of which are insured by the FDIC and the
debt obligations of which are rated "AA" or better by S&P, Duff &
Xxxxxx, Xxxxx'x or Fitch or (ii) the corporate trust department of
any bank the debt obligations of which are rated at least A-1 or its
equivalent by either of Fitch or Duff & Xxxxxx and S&P or Xxxxx'x.
8. A new definition of "Monthly Advance" is added to Article I immediately
following the definition of "Missing Document Report" to read as follows:
Monthly Advance: means with respect to each Distribution Date and
each Loan, an amount equal to the Monthly Payment (with the interest
portion of such Monthly Payment adjusted to the Mortgage Loan
Remittance Rate) that was due on the Loan, and that (i) was
delinquent at the close of business on the first day of the month in
which such Distribution Date occurs and (ii) was not the subject of
a previous Monthly Advance, but only to the extent that such amount
is expected, in the reasonable judgment of the Servicer, to be
recoverable from collections or other recoveries in respect of such
Loan. To the extent that the Servicer determines that any such
amount is not recoverable from collections or other recoveries in
respect of such Loan, such determination shall be evidenced by a
certificate of a Servicing Officer delivered to the Master Servicer
setting forth such determination and the procedures and
considerations of the Servicer forming the basis of such
determination, which shall include a copy of any broker's price
opinion and any other information or reports obtained by the
Servicer which may support such determinations.
9. The definition of "Prepayment Interest Shortfall Amount" in Article I is
hereby amended by inserting the words (i) "voluntary (not including
discounted payoffs)" between the words "a" and "principal" in the second
line thereof.
10. A new definition of "Prime Rate" is added to Article I immediately
following the definition of "Prepayment Interest Shortfall Amount" to
read as follows":
"Prime Rate" means the prime rate published from time to time, as
published as the average rate in The Wall Street Journal Northeast
Edition.
11. The definition of "Servicing Advances" in Article I is hereby amended in
its entirety to read as follows:
"Servicing Advances" means all customary, reasonable and necessary
"out-of-pocket" costs and expenses (including reasonable attorneys'
fees and disbursements) incurred by the Servicer in the performance
by the Servicer of its servicing obligations hereunder, including,
but not limited to, (a) Property Protection Expenses, Escrow
Payments, Property Improvement Expenses and (b) any enforcement or
administrative or judicial proceedings, including foreclosures.
12. The definition of "Servicing Fee" in Article I is hereby amended in its
entirety to read as follows:
"Servicing Fee" means an amount equal to one twelfth the product of
(a) a rate per annum equal to 0.50% and (b) the outstanding
principal balance of the Loan. The obligation of the Trustee to pay
the Servicing Fee is limited to, and the Servicing Fee is payable
solely from, the interest portion (including recoveries with respect
to interest from Liquidation Proceeds) of such Monthly Payment
collected by the Servicer, or as otherwise provided under this
Agreement.
13. The parties hereto acknowledge that Section 2.1 (Transfer of Servicing
Files to Servicer) of the Flow Servicing Agreement shall be inapplicable
to this Reconstitution Agreement.
14. The parties hereto acknowledge that to the extent that the provisions of
Section 2.2 (Release of Loan Documents) are inconsistent with the
provisions of the Custodial Agreements relating to the Serviced Mortgage
Loans, the provisions of the Custodial Agreements shall govern.
15. Section 2.3(b) is hereby amended by deleting the word "and" at the end of
clause (iv), deleting the period at the end of clause (v) and replacing
it with a semi-colon followed by the word "and" and a semicolon; and by
adding a new clause (vi) to read as follows:
(vi) any Prepayment Interest Shortfall Amount.
16. A new Section 5.5 is added to the Flow Servicing Agreement to read as
follows:
Section 5.6 Annual Officer's Certificate. On or before April 30 of
each year, beginning with April 30, 2001, the Servicer, at its own
expense, will deliver to the Master Servicer a Servicing Officer's
certificate stating, as to each signer thereof, that (i) a review of
the activities of the Servicer during such preceding fiscal year and
of performance under this Agreement has been made under such
officers' supervision, and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement for such year, or, if there has
been a default in the fulfillment of all such obligations,
specifying each such default known to such officers and the nature
and status thereof including the steps being taken by the Servicer
to remedy such default.
17. Section 6.2 (Remittances and Monthly Report) is hereby amended as
follows:
(1) paragraph (b) shall be deleted in its entirety and replaced
with the following new paragraph (b):
(b) to make payments to the Master Servicer in the amounts and
in the manner provided by Section 6.6.
(2) the word "Owner" in paragraph (d) shall be replaced by the
words "Trust Fund" and the parenthetical in such paragraph "(as
set forth in Section 6.4 below)" shall be inapplicable.
(3) a new paragraph (e) shall be added to read as follows:
(e) to reimburse the Servicer for Monthly Advances of the
Servicer's funds made pursuant to Section 6.8, it being
understood that, in the case of any such reimbursement,
the Servicer's rights thereto shall be prior to the rights
of the Trust Fund.
18. Section 6.3 (Remittance Upon Termination) is hereby amended by restating
paragraph (c) of such Section as follows:
(c) to reimburse itself for all unpaid Servicing Fees, Monthly
Advances and Servicing Advances, it being understood that
the Servicer's rights to such reimbursement shall be prior
to the rights of the Trust Fund.
19. The parties hereto acknowledge that Section 6.4 (Billing) shall be
inapplicable to this Reconstitution Agreement.
20. The parties hereto acknowledge that Section 6.5 (Missing Document Report)
shall be superseded by the provisions of the Custodial Agreements.
21. New Sections 6.6, 6.7 and 6.8 are hereby added to the Flow Servicing
Agreement to read as follows:
Section 6.6. Remittances.
On each Distribution Date the Servicer shall remit by wire
transfer of immediately available funds to the Master Servicer (a)
all amounts deposited in the Collection Account as of the close of
business on the last day of the related Collection Period (net of
charges against or withdrawals from the Collection Account pursuant
to Section 6.3), plus (b) all Monthly Advances, if any, which the
Servicer is obligated to make pursuant to Section 6.8, minus (c) any
amounts attributable to principal prepayments, Liquidation Proceeds,
insurance proceeds, condemnation proceeds or REO disposition
proceeds received after the applicable Collection Period, which
amounts shall be remitted on the following Distribution Date,
together with any additional interest required to be deposited in
the Collection Account in connection with such Principal Prepayment
Interest Shortfall Amount in accordance with Section 2.3(b)(vi), and
minus (d) any amounts attributable to Monthly Payments collected but
due on a due date or dates subsequent to the first day of the month
in which such Distribution Date occurs, which amounts shall be
remitted on the Distribution Date next succeeding the Collection
Period for such amounts.
With respect to any remittance received by the Master Servicer
after the Business Day on which such payment was due, the Servicer
shall pay to the Master Servicer interest on any such late payment
at an annual rate equal to the Prime Rate, adjusted as of the date
of each change, plus three percentage points, but in no event
greater than the maximum amount permitted by applicable law. Such
interest shall be deposited in the Collection Account by the
Servicer on the date such late payment is made and shall cover the
period commencing with the day following such Business Day and
ending with the Business Day on which such payment is made, both
inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Distribution Date. The
payment by the Servicer of any such interest shall not be deemed an
extension of time for payment or a waiver of any Event of Default by
the Servicer.
All remittances required to be made to the Master Servicer
shall be made to the following wire account:
Norwest Bank Minnesota, National Association
Minneapolis, Minnesota
ABA #: 0000000000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
For further credit to: 13633800, ARC 2000-BC1
Section 6.7 Statements to Master Servicer.
Not later than the fourteenth calendar day (or if such
fourteenth calendar day is not a Business Day, the immediately
succeeding Business Day) of each month, the Servicer shall furnish
to the Master Servicer (a) a monthly remittance advice containing
such information in the form of FNMA form 2010 or such other form as
shall be required by the FNMA Guides or by the Master Servicer as to
the accompanying remittance and the period ending on the preceding
Determination Date and (b) all such information required pursuant to
clause (a) above on a magnetic tape or other similar media
reasonably acceptable to the Master Servicer.
Such monthly remittance advice shall also include on a
cumulative basis the amount of any (i) claims filed, (ii) claim
payments made and (iii) claims denied with respect to those Serviced
Mortgage Loans covered by loan-level primary mortgage insurance
policies provided by PMI Mortgage Insurance Co. or any other
provider of primary mortgage insurance purchased by the Trust
(collectively, the "PMI Policies").
In addition, not more than 60 days after the end of each
calendar year, commencing December 31, 2000, the Servicer shall
furnish to each Person who was an owner of a Serviced Mortgage Loan
at any time during such calendar year as required by applicable law
or if not required by applicable law, at the request of such owner
as to the aggregate of remittances for the applicable portion of
such year.
Such obligation of the Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information
shall be provided by the Servicer pursuant to any requirements of
the Internal Revenue Code as from time to time are in force.
The Servicer shall provide the Master Servicer with such
information available to it concerning the Mortgage Loans as is
necessary for the Master Servicer to prepare the Trust Fund's
federal income tax return as the Master Servicer may reasonably
request from time to time.
Section 6.8 Monthly Advances by Servicer.
The Servicer shall make Monthly Advances through the
Distribution Date immediately preceding the distribution of all
Liquidation Proceeds and other payments or recoveries (including
insurance proceeds and condemnation proceeds) with respect to the
related Loans.
22. A new paragraph is hereby added at the end of Section 7.1
(Representations and Warranties) to read as follows:
It is understood and agreed that the representations and
warranties set forth in Section 7.1 shall survive the engagement of
the Servicer to perform the servicing responsibilities hereunder and
the delivery of the Servicing Files to the Servicer and shall inure
to the benefit of the Trustee. Upon discovery by either the
Servicer, the Master Servicer or the Trustee of a breach of any of
the foregoing representations and warranties which materially and
adversely affects the ability of the Servicer to perform its duties
and obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Loans, the Mortgaged
Property or the priority of the security interest on such Mortgaged
Property or the interest of the Trustee, the party discovering such
breach shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice
to the Servicer of any breach of a representation or warranty set
forth in Section 7.1 which materially and adversely affects the
ability of the Servicer to perform its duties and obligations under
this Agreement or otherwise materially and adversely affects the
value of the Loans, the Mortgaged Property or the priority of the
security interest on such Mortgaged Property, the Servicer shall use
its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Servicer shall, at
the Trustee's option, assign the Servicer's rights and obligations
under this Agreement (or respecting the affected Loans) to a
successor Servicer selected by the Trustee with the prior consent
and approval of the Master Servicer. Such assignment shall be made
in accordance with Section 10.4.
In addition, the Servicer shall indemnify the Trustee and
Master Servicer and hold each of them harmless against any costs
resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Servicer's
representations and warranties contained in this Agreement. It is
understood and agreed that the remedies set forth in this Section
7.1 constitute the sole remedies of the Master Servicer and the
Trustee respecting a breach of the foregoing representations and
warranties.
Any cause of action against the Servicer relating to or arising
out of the breach of any representations and warranties made in
Section 7.2 shall accrue upon (i) discovery of such breach by the
Servicer or notice thereof by the Trustee or Master Servicer to the
Servicer, (ii) failure by the Servicer to cure such breach within
the applicable cure period, and (iii) demand upon the Servicer by
the Trustee or the Master Servicer for compliance with this
Agreement.
23. The parties hereto acknowledge that the remedies set forth in Section
10.1(b) may be exercised by either the Master Servicer or Trustee on
behalf of the Trust.
24. A new paragraph is hereby added as the final paragraph of Section 10.1 to
read as follows:
By a written notice, the Trustee and the Master Servicer may
waive any default by the Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a
past default, such default shall cease to exist, and any Event of
Default under Section 9.1 arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
25. The parties hereto acknowledge that the prior written approval of "Owner"
in Section 10.2 refers to both the prior written approval of the Master
Servicer and the Depositor.
26. Section 10.1(c) is hereby amended in its entirety to read as follows:
(c) At the sole discretion of the Directing Holder, the
Directing Holder may terminate the rights and obligations of the
Servicer under this Agreement. Any such termination shall be with 30
days' prior notice, in writing and delivered to the Trustee, the
Master Servicer and the Servicer by registered mail. The Servicer
shall comply with the termination procedures set forth in Section
10.4 hereof. The Master Servicer or the Trustee shall have no right
to terminate the Servicer pursuant to this Section 10.1(c). In the
event of a termination pursuant to this Section 10.1(c), the
Directing Holder shall pay to the Servicer a sum, as liquidated
damages, equal to the product of (a) two, (b) the annual servicing
fee rate, and (c) the aggregate unpaid principal balance of the
Loans for which this Agreement is going to be terminated as of the
last day of the month following receipt of such notice of
termination.
27. A new Section 12.10 (Intended Third Party Beneficiaries) is added to the
Flow Servicing Agreement to read as follows:
Section 12.10 Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the
parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein, that
the Master Servicer and the Directing Holder receive the benefit of
the provisions of this Agreement as intended third party
beneficiaries of this Agreement to the extent of such provisions.
The Servicer shall have the same obligations to the Master Servicer
and the Directing Holder as if they were parties to this Agreement,
and the Master Servicer and the Directing Holder shall have the same
rights and remedies to enforce the provisions of this Agreement as
if they were parties to this Agreement. The Servicer shall only take
direction from the Master Servicer (if direction by the Master
Servicer is required under this Agreement) unless otherwise directed
by this Agreement. Notwithstanding the foregoing, all rights and
obligations of the Master Servicer hereunder (other than the right
to indemnification) shall terminate upon termination of the Trust
Agreement and of the Trust Fund pursuant to the Trust Agreement.
28. A new paragraph is hereby added to Section 10.4 immediately preceding the
existing paragraph of Section 10.4, to read as follows:
Within 90 days of the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to
Sections 10.1(b) or 10.3, the Master Servicer shall (i) succeed to
and assume all of the Servicer's responsibilities, rights (other
than those rights provided in 10.1(d)), duties and obligations under
this Agreement (provided that the Master Servicer shall immediately
assume the obligation of the Servicer to make Monthly Advances
pursuant to Section 6.8 effective with such termination of the
Servicer), or (ii) appoint a successor meeting the eligibility
requirements of this Agreement and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of
the Servicer under this Agreement simultaneously with the
termination of the Servicer's responsibilities, duties and
liabilities under this Agreement; or (b) pursuant to Section
10.1(c), the Directing Holder shall appoint a successor which shall
succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Servicer under this Agreement simultaneously
with the termination of the Servicer's responsibilities, duties and
liabilities under this Agreement. Any successor to the Servicer
shall be subject to the approval of the Master Servicer, the
Depositor and each Rating Agency (as such term is defined in the
Trust Agreement). Each Rating Agency must deliver to the Trustee a
letter to the effect that such transfer of servicing will not result
in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates. In addition, with respect to any
FHA Loans serviced hereunder, the Servicer shall provide notice of
such change in servicers to HUD on HUD Form 92080 or such other form
as prescribed by HUD, at least 10 days after such transfer of
servicing. In connection with such appointment and assumption, the
Master Servicer or the Depositor, as applicable, may make such
arrangements for the compensation of such successor out of payments
on Loans as it and such successor shall agree; provided, however,
that no such compensation shall be in excess of that permitted the
Servicer under this Agreement. In the event that the Servicer's
duties, responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned sections, the Servicer
shall discharge such duties and responsibilities during the period
from the date it acquires knowledge of such termination until the
effective date thereof with the same degree of diligence and
prudence which it is obligated to exercise under this Agreement, and
shall take no action whatsoever that might impair or prejudice the
rights or financial condition of its successor. The resignation or
removal of the Servicer pursuant to the aforementioned sections
shall not become effective until a successor shall be appointed
pursuant to this Section 10.4 and shall in no event relieve the
Servicer of the representations and warranties made pursuant to
Sections 10.1 and the remedies available to the Trustee under
Section 7.1, it being understood and agreed that the provisions of
such Section 7.1 shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer, or the
termination of this Agreement.
Within a reasonable period of time, but in no event longer than
30 days of the appointment of a successor entity, the Servicer shall
prepare, execute and deliver to the successor entity any and all
documents and other instruments, place in such successor's
possession all Servicing Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of
such notice of termination. The Servicer shall cooperate with the
Trustee and the Master Servicer, as applicable, and such successor
in effecting the termination of the Servicer's responsibilities and
rights hereunder and the transfer of servicing responsibilities to
the successor Servicer, including without limitation, the transfer
to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to the Collection
Account or any Escrow Account or thereafter received with respect to
the Loans. In the event the Servicer is terminated pursuant to
Section 10.1(c), the Directing Holder shall be responsible for
payment of any out-of-pocket costs incurred by the Servicer in
connection with the transfer of the Serviced Mortgage Loans to a
successor servicer.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Servicer and the Master
Servicer an instrument (i) accepting such appointment, wherein the
successor shall make the representations and warranties set forth in
Section 7.1 and (ii) an assumption of the due and punctual
performance and observance of each covenant and condition to be
performed and observed by the Servicer under this Agreement,
whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named
as a party to this Agreement. Any termination or resignation of the
Servicer or termination of this Agreement pursuant to Sections 10.1
or 10.3 shall not affect any claims that the Master Servicer or the
Trustee may have against the Servicer arising out of the Servicer's
actions or failure to act prior to any such termination or
resignation.
The Servicer shall deliver promptly to the successor Servicer
the funds in the Collection Account and Escrow Account and all Loan
Documents and related documents and statements held by it hereunder
and the Servicer shall account for all funds and shall execute and
deliver such instruments and do such other things as may reasonably
be required to more fully and definitively vest in the successor all
such rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer.
Upon a successor's acceptance of appointment as such, the
Servicer shall notify the Trustee and Master Servicer of such
appointment in accordance with the notice procedures set forth
herein.
